SOHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgement dated December 21, 1983, passed by the Additional Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellants.

(2.) ACCUSED-appellant Sohan Singh was tried by the learned Sessions Judge No. 2 Hanumangarh, for the offences under Sections 302 and 452 I. P. C. , and under section 27 of the Indian Arms Act. ACCUSED-appellants Sarwan Singh and Banta Singh were tried for the offences under section 302/114/34, 323 and 452 I. P. C. The learned Additional Sessions Judge, after trial, convicted accused Sohan Singh for the offences under Sections 302 and 452 I. P. C. and Section 27 of the Indian Arms Act and sentenced him to undergo imprisonment for life and a fine of Rs. 5000/- and in default of payment of fine further to undergo two year's rigorous imprisonment under Section 302, I. P. C, under Section 27 of the Indian Arms Act, he was sentenced to undergo two years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one months' rigorous imprisonment and under Section 452 I. P. C, he was sentenced to two years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo one month's rigorous imprisonment. All these three sentences were directed to run concurrently. ACCUSED Banta Singh and Sarwan Singh were acquitted by the learned Additional Sessions Judge under Section 302/114/34 I. P. C, but they were convicted under Sections 452 and 323 I. P. C. and each of them was sentenced to undergo two years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo one month's rigorous imprisonment under Section 452 I. P. C. they were further sentenced to undergo six months' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment under Section 323 I. P. C. Both the sentences were directed to run concurrently. It is against this judgement, convicting and sentencing the accused-appellants that the present appeal has been filed by the appellants.

(3.) SO far as the recovery part is concerned, we have three informations. Ex. P. 14 is the information given by accused SOhan Singh under Section 27 of the Indian Evidence Act, on the basis of which it is alleged that the recovery of one pistol was made. Ex. P. 18 is the information under Section 27 of the Indian Evidence Act given by accused Sarwan Singh regarding recovery, on the basis of which the alleged recovery of the pistol was made. Ex. P. 22 is the information under section 27 of the Indian Evidence Act given by accused Banta Singh and on the basis of which the recovery of one pistol was made by the Station House Officer. These three informations do not state that these were the accused who had placed the pistols at the places and got them recovered. The informations only state that the pistols have been hidden near the tree (Taali) in the Sarkandas. Therefore, it cannot be said that these recoveries were at the instances of the accused-appellants, who gave informations which led to the discoveries and they were the persons who concealed them there. This evidence of recoveries, therefore, cannot be read against the accused as to make such circumstances, incriminating, it must be shown that the appellants themselves had concealed the pistols there. The recoveries of these three pistols, thus, cannot be said to be made at the instance of these three accused, and therefore, the recoveries of these pistols is of no help to the prosecution. Moreover, the recoveries have been made from an open place accessible to all. Though the recovery of the pistol was made at the instance of SOhan Singh (accused-appellant) and the pallets were, also, recovered from the deadbody, but neither the pallets nor the pistol was sent to the Ballistic Expert and no report of the Ballistic Expert has been placed on record by the prosecution. Whether the pistol was in a working order and these pallets were fired from the cartridge which was fired from this pistol, is not proved. In the absence of these materials, this pistol, can neither be connected with the crime nor with the accused SOhan Singh and the prosecution cannot take any benefit from this recovery. Thus, there remains only the evidence of the two eye-witnesses, namely, PW 1 Jangir Kaur and PW 2 Moda Singh. Now, we have to consider, whether these witnesses have seen the occurrence and whether they are reliable witnesses?